Exception to Development Standard –
Minimum Lot Size
(Clause 4.6 Orange LEP)
Riverside Centre (North Bloomfield), Orange
One to Two Lot Subdivision
Final: Version 3.0, 2 October 2020
Prepared for: Housing & Property, Department of Planning, Industry and Environment
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2 Clause 4.6 Variation Request - Riverside Centre, Orange
Disclaimer:
This document may only be used for the purpose for which it was commissioned.
Changes to available information, legislation and schedules are made on an
ongoing basis and readers should obtain up to date information. TBA Urban accepts
no liability or responsibility whatsoever for or in respect of any use of or reliance upon
this report and its supporting material by any third party. Information provided is not
intended to be a substitute for site specific assessment or legal advice in relation to
any matter. Unauthorised use of this report in any form is prohibited.
Document Control:
Project Reference Number: 2020 / 56
Version No. Date Document Status Completed by
V1.0 24/08/2020 Draft Patrick Waite
V1.1 24/08/2020 Draft Peer Reviewed Peter Mangels
V2.0 28/08/2020 FINAL – post client review Patrick Waite
V3.0 02/10/2020 Updated in response to
Council’s add info request
(28 Sep 2020)
Patrick Waite
Document Release:
Issuing
Version
Issued Date Issued Purpose Director Approval Signature
V1.1 24 Aug 2020 Draft for client
review Peter Mangels
V2.0 28 Aug 2020
Final Draft –
post client
review
Peter Mangels
V3.0 2 October Updated Final Peter Mangels
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3 Clause 4.6 Variation Request - Riverside Centre, Orange
Contents
1. Summary ............................................................................................................................ 4
2. Summary ............................................................................................................................ 4
3. Site and Context .............................................................................................................. 4
4. Proposed development .................................................................................................. 6
5. Consideration of the Contravention of the Development Standard ....................... 7
6. Conclusion ...................................................................................................................... 14
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4 Clause 4.6 Variation Request - Riverside Centre, Orange
1. Summary
This Clause 4.6 variation request has been prepared by TBA Urban in support of the
proposed one lot to two lot subdivision of the land at 1502 Forest Road, Orange
(subject site).
The request seeks to vary the Minimum Lot Size development standard prescribed for
part of the subject site under Clause 4.1 of the Orange Local Environmental Plan
2011 (OLEP 2011). The variation request is made pursuant to Clause 4.6 of the OLEP
2011.
The proposed subdivision seeks to rationalise the lot boundaries with the land use
zone boundaries as a means to facilitate future development.
2. Summary
The proposed development is as described in detail in the Statement of
Environmental Effects (SEE) prepared by TBA Urban. This variation request is to be
read in conjunction with the SEE.
The proposed subdivision seeks consent to subdivide the parent lot (Lot 1 in DP
1250343) which is 57.29 ha into two lots which will have site areas of 32.42 ha
(proposed lot 700) and 24.87 ha (proposed lot 701). The proposed configuration of
the proposed subdivision boundaries follows the existing land use zone boundaries
provided for by OLEP 2011.
The request to vary the Minimum Lot Size development standard is limited to an
isolated portion of land (subject portion) that is restricted to a 100 ha minimum lot
size despite the fact that the isolated portion is in-itself only ~10 ha in area.
The remaining area of the subject site is restricted to a minimum lot size of 1,000sqm,
or the land is not restricted to a minimum lot size development standard.
In this regard, this variation request is considered to be a matter of administration as
opposed to meritorious request.
The issue of the minimum lot size discrepancy is considered to be a short term issue
as the zoning of the local area is currently being reconsidered as part of the Orange
Health and Innovation Masterplan and will likely be rezoned in the near future.
3. Site and Context
Site Location
The subject site is located at 1502 Forest Road Orange NSW 2800, within the Riverside
Centre area of Bloomfield (North Bloomfield), and formally identified as Lot 1 DP
1250343. The site is approximately 3.6km south of the Orange City Centre and
Orange train station.
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Site Details
The subject site (Lot 1 in DP 1250343) is 57.29ha is area, irregular in shape, and is
occupied by a range of medical, respite and treatment buildings.
The site is bound by Forest Road to the west, Huntley Road to the east, which
culminate to the north, and Bloomfield Road to the south.
The subject site is located within the Bloomfield Hospital precinct, which includes the
Orange Public Hospital, a mental Health Services Facility (Bloomfield South)
adjoining the hospital, and Riverside Centre (Bloomfield North), which most
previously was used as an Aging Disability and Home Care facility and closed in
2016. Refer to Figure 1.
Figure 1 - Site Map, showing proposed subdivision and notable use (source: Six Maps as adapted by
TBA Urban)
Land uses within the vicinity
The immediate land uses that adjoin Bloomfield include a golf course to the north
and south-east operated by the Orange Ex-Services Country Club, sports fields within
the centre of the precinct and additional fields north of the golf course at Sir Jack
Brabham Park.
A tertiary educational facility, which includes TAFE NSW, is located to the north-west,
and the Orange Agricultural Institute is located to the south-west.
Directly across the Forest Road from the public hospital is the newly constructed
Orange Private Hospital (1521 Forest Road), and further south is the Gosling Creek
aged care facility (1503 Forest Rd).
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The Gosling Creek runs to the south of the site along Bloomfield Road.
4. Proposed development
The proposed development seeks consent for the subdivision of one lot to two lots,
to facilitate future development. Refer to Figure 2.
Lot 1 of DP 1250343 (site area of 57.29 ha) is proposed to be subdivided into:
- Proposed lot 700 which will have a site area of 32.42 ha, and
- Proposed lot 701 which will have a site area of 24.87 ha.
Figure 2 - Proposed subdivision layout (source: Survey of Proposed Subdivision Plan, Craig Jacques &
Assoc., Revision 6, 24/07/2020 as adapted by TBA Urban)
The configuration of the proposed subdivision will rationalise the subject lot
boundaries with the OLEP 2011 land use zoning boundaries. Refer to the Figure 5 for
diagrammatic representation.
Proposed Lot 701 will incorporate the north-eastern portion of R1 General Residential
zoned land, the south-eastern E2 Environmental Conservation zoned land and a
small portion of the E4 Environmental Living zoned land, and a fraction of the RE1
Public Recreation zoned and on the eastern boundary and RE2 Private Recreation
zoned land to the north to maintain lot access to Huntley Road, and Forest Road
respectively.
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Proposed Lot 700 will incorporate a separate isolated portion of R1 General
Residential zoned land, and the majority of the E4 Environmental zoned land within
the precinct, and a vast portion of the SP2 Hospital zoned land.
The E2 Environmental Conservation zoned land is the subject of this variation request
and is later referred to as the subject portion.
Refer to Figure 3.
Figure 3 - Extract of land use zoning map, showing proposed subdivision (source: Orange Local
Environmental Plan 2011)
5. Consideration of the Contravention of the Development
Standard
Clause 4.6 provides a mechanism to enable the exercise of flexibility in applying
development standards under certain circumstances in order to achieve a better
outcome from the development.
Clause 4.6 also requires the concurrence of the Secretary to be obtained prior to the
granting of consent for development that contravenes a development standard.
The issue of the concurrence of the Secretary of the Department of Planning and
Environment is dealt with by Planning Circular PS 20–002 ‘Variations to development
standards’, dated 5 May 2020. This circular is a notice under 64(1) of the
Environmental Planning and Assessment Regulation 2000. A consent granted by a
consent authority that has assumed concurrence is as valid and effective as if
concurrence had been given.
The circular provides for assumed concurrence. Concurrence cannot be assumed
for a request for a variation to a numerical standard by more than 10 per cent if the
function is to be exercised by a delegate of the consent authority.
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Consideration has been given to the following matters within this assessment:
• Varying development standards: A Guide, prepared by the Department of
Planning and Infrastructure dated August 2011.
• Relevant judgements issued by the Land and Environment Court.
Table 1: Consideration of proposed variation in form prescribed by the Department
of Planning, Industry and Environment’s ‘Application Form to vary a development
standard’.
Item Consideration / Comment
1 What is the name of the environmental planning instrument that applies
to the land?
Orange Local Environmental Plan 2011
2 What is the zoning of the land?
The land use zone to which proposed lot 701 relates includes:
• R1 General Residential
• E4 Environmental Living
• E2 Environmental Conservation
• RE1 Public Recreation – limited to portion of land required to
access Huntley Road
• RE2 Private Recreation – limited to portion of land required to
access Forest Road.
The land use zone to which proposed lot 700 relates includes:
• R1 General Residential
• E4 Environmental Living
• SP2 Infrastructure – Hospital
Refer to Figure 3 above.
3 What are the objectives of the zone?
R1 General Residential:
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the
day to day needs of residents.
• To ensure development is ordered in such a way as to maximise public
transport patronage and encourage walking and cycling in close
proximity to settlement.
• To ensure that development along the Southern Link Road has an
alternative access.
E4 Environmental Living:
• To provide for low-impact residential development in areas with special
ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect
on those values.
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• To provide for housing and complementary uses in an area with a
predominantly natural setting.
E2 Environmental Conservation:
• To protect, manage and restore areas of high ecological, scientific,
cultural or aesthetic values.
• To prevent development that could destroy, damage or otherwise have
an adverse effect on those values.
• To ensure development along the Southern Link Road has alternative
access.
RE1 Public Recreation:
• To enable land to be used for public open space or recreational
purposes.
• To provide a range of recreational settings and activities and
compatible land uses.
• To protect and enhance the natural environment for recreational
purposes.
• To ensure development is ordered in such a way as to maximise public
transport patronage and encourage walking and cycling in close
proximity to settlement.
• To ensure development along the Southern Link Road has alternative
access.
RE2 Private Recreation:
• To enable land to be used for private open space or recreational
purposes.
• To provide a range of recreational settings and activities and
compatible land uses.
• To protect and enhance the natural environment for recreational
purposes.
• To ensure development is ordered in such a way as to maximise public
transport patronage and encourage walking and cycling in close
proximity to settlement.
• To ensure development along the Southern Link Road has alternative
access.
SP2 Infrastructure:
• To provide for infrastructure and related uses.
• To prevent development that is not compatible with or that may detract
from the provision of infrastructure.
4 What is the development standard being varied?
Minimum subdivision lot size.
5 Under what clause is the development standard listed in the
environmental planning instrument?
Clause 4.1 (Minimum Lot Size).
6 What are the objectives of the development standard?
(a) to ensure that new subdivisions reflect existing lot sizes and patterns in the
surrounding locality,
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(b) to ensure that lot sizes have a practical and efficient layout to meet
intended use,
(c) to ensure that lot sizes do not undermine the land’s capability to support
rural development,
(d) to prevent the fragmentation of rural lands,
(e) to provide for a range of lot sizes reflecting the ability of services
available to the area,
(f) (f) to encourage subdivision designs that promote a high level of
pedestrian and cyclist connectivity and accommodate public transport
vehicles.
7 What is the numeric value of the development standard in the
environmental planning instrument?
There are two Minimum Lot Size development standards that apply to the
subject site.
These are:
• 1,000sqm (U1) for the land zoned R1 (General Residential), E4
(Environmental Living), and
• 100 ha (AD) for the land zoned E2 (Environmental Conservation)
Refer to Figure 4.
Figure 4 - Extract of the minimum lot size zoning map, showing the proposed subdivision
(source: Orange Local Environmental Plan 2011)
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8 What is proposed numeric value of the development standard in your
development application?
• Proposed lot 700 has a lot size area of 32.42 ha, and
• Proposed lot 701 has a lot size area of 24.87 ha.
Proposed Lot 700 complies with the applicable minimum lot size
development standards.
The portion of the land that is zoned E2 Environmental Conservation within
Proposed Lot 701 is restricted to a minimum lot size of 100 ha, despite being
only about 10 ha in site area itself.
9 What is the percentage variation (between your proposal and the
environmental planning instrument)?
• Percentage variation of Lot 701 to the 100 ha minimum lot size is
402.6%.
• Percentage variation of the isolated portion (~10 ha) restricted to 100
ha is 1000%.
• Percentage variation of existing parent lot (Lot 1 DP 1250343) to the
minimum lots size is 174.6%
It should be noted that compliance with this development standard is
impossible given the exiting portion of E2 Environmental Conservation
zoned land does not comply.
Accordingly, this considered to be an administrative variation request.
10 Clause 4.6(3)(a) Compliance with the development standard is
unreasonable or unnecessary in the circumstances of the case
Compliance with the building height development standard is
considered unnecessary and unreasonable in this circumstance as:
• The portion of land that is restricted to a minimum lot size of 100 ha is
only about 10 ha in area and inherently unable to comply with the
prescribed minimum lot size in and off itself, regardless of subdivision
configuration.
• There is no way to practically enforce a minimum lot size of 100 ha for
the subject portion of land given that the parent lot (Lot 1 DP
1250343) with a site area of ~57 ha already exhibits a non-
compliance with the subject minimum lot standard for this portion of
land (100 ha).
• The immediately adjoined R1 General Residential and E4
Environmental Living zoned land is afforded their own legal rights to
develop and use the land in accordance with the provisions of those
zones. In this regard, it would be unreasonable to enforce a 100 ha
minimum lot size beyond the subject portion of land.
• Despite the inherent non-compliance issue, the portion of the site that
is zoned E2 Environmental Conservation is still capable of achieving
the zone objectives:
• To protect, manage and restore areas of high ecological,
scientific, cultural or aesthetic values.
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• To prevent development that could destroy, damage or otherwise
have an adverse effect on those values.
• To ensure development along the Southern Link Road has
alternative access.
Noting that this portion of land directly adjoins RE1 Public Recreation
zoned land to the south which is further connected to a large
contiguous expanse of land zoned E2 Environmental Conservation, it
is considered that this physical connection can assist in linking this
portion of land with the greater ecological network south of the site,
and thereby assisting with ‘restoring areas of high ecological value’.
• The zoning of the local and immediate area is being re-considered as
part of Council’s and the Department of Planning, Industry and
Environments proposal to create a Health and innovation Master
planned precinct which will leverage Orange Hospital as an anchor.
In this regard, the future of the minimum lot size standards is uncertain
for the local area and enforcing compliance for future integrity is
considered to be unreasonable and unnecessary.
11 Clause 4.6(3)(b) There are sufficient environmental planning grounds to
justify contravening the development standard.
It is submitted that the variation is well founded and is worthy of the
Council’s approval.
• The proposed subdivision will facilitate the alignment of lot boundaries
with the land use zoning boundaries which, in turn, will support the
achievement of orderly and economic land as guided by the
respective zone objectives.
• The proposal will support delivering on the intent of the strategic
planning which is being undertaken for the local area (Health and
Innovation Precinct).
• The variation will unlock land from a large landholding, which will
provide the opportunity to deliver land for business uses and
accommodation uses to support of key industry in the local area.
12 Is the development standard a performance based control?
Give details.
The development standard is a prescribed numerical standard and not a
performance based control.
(13) Clause 4.6(4)(a)(ii) Will the proposed development be in the public
interest because it is consistent with the objectives of the particular
standard and objectives for development within the zone in which the
development is proposed to be carried out?
Objectives of Clause 4.1 (Minimum Lot Size)
(a) to ensure that new subdivisions reflect existing lot sizes and patterns in
the surrounding locality,
Comment: The proposed subdivision reflects the land use zone
boundaries prescribed by the Orange Local Environmental Plan 2011.
(b) to ensure that lot sizes have a practical and efficient layout to meet
intended use,
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Comment: Proposed subdivision lends itself well to future subdivisions
that will deliver on the specific land use zone objectives and
permitted uses.
(c) to ensure that lot sizes do not undermine the land’s capability to
support rural development,
Comment: The subject site does not include any rural development
zoned land.
Proposed lot sizes maintain significant land holding which will not
undermine the lands capability to achieve the respective zone
objectives.
(d) to prevent the fragmentation of rural lands,
Comment: The subject site does not include any rural development
zoned land.
(e) to provide for a range of lot sizes reflecting the ability of services
available to the area,
Comment: Proposal is for a facilitating subdivision, which will lend
future development in accordance with the land use zone
boundaries.
(f) to encourage subdivision designs that promote a high level of
pedestrian and cyclist connectivity and accommodate public
transport vehicles.
Comment: Proposal is for a facilitating subdivision. The proposal will
not preclude future development from promoting and delivering a
high level pedestrian and cyclist connectivity.
(14) Clause 4.6(5)(a) – Would non-compliance raise any matter of
significance for State or regional planning?
No. The proposed non-compliance is highly unique, and in its current
state, a non-compliance that can never be made to comply.
The proposed non-compliance is purely based on the specific
circumstances of the case and would not result in an unacceptable
precedent for the assessment of other development proposals.
(15) Clause 4.6(5)(b) – Is there a public benefit of maintaining the
development standard?
No. Strict compliance with the development standard would preclude
any appropriate subdivision opportunities for the subject portion of land
and by extension the subject site which would thwart the economic and
orderly use of the land.
(16) Clause 4.6(5)(c) – Are there any other matters required to be taken into
consideration by the Secretary before granting concurrence?
Matters relevant in the Planning Circular PS 20–002 ‘Variations to
development standards’, dated 5 May 2020, will need to be considered
by the Secretary.
(17) (6) Development consent must not be granted under this clause for a
subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural
Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots,
Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental
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Conservation, Zone E3 Environmental Management or Zone E4
Environmental Living if—
(a) the subdivision will result in 2 or more lots of less than the minimum
area specified for such lots by a development standard, or
(b) the subdivision will result in at least one lot that is less than 90% of
the minimum area specified for such a lot by a development
standard.
Note. When this Plan was made it did not include Zone RU2 Rural
Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots or
Zone RU6 Transition.
The proposed development does not seek to subdivide land in Zone E2
(Environmental Conservation) zone.
In this regard, this subsection (6) of clause 4.6 is not considered to be
applicable to the site.
Furthermore, the intent of this clause is not considered to preclude
subdivision of land which adjoins land that is subject to the 100 ha
minimum lot size overlay.
6. Conclusion
Strict compliance with the minimum lot size development standard is unreasonable
and/or unnecessary in the circumstances of this case for the following reasons:
• The proposed non-compliance is highly unique resulting from an inherent
inconsistency in Orange Local Environmental Plan 2011, and in its current form
it is a non-compliance that can never be made to comply.
• Despite the non-compliance, the proposal is consistent with the objectives of
the minimum lot size standard.
• The proposal supports the intention of ongoing strategic planning for the local
area (Health and Innovation Precinct).
• Council’s support of the proposed variations will support the opportunity for
the economic and orderly development of the subject site.
• The variation to the development standard is supportable from environmental
planning grounds as it will not result in adverse environmental impacts.
Maintaining strict compliance with the development standard is not considered to
be in the public interest.
Based on the reasons outlined above, it is concluded that the request is well
founded and that the circumstances of the case warrant support for the
contravention of the development standard in this case.
